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Maurice Emmer: Guest opinion

Maurice Emmer
Special to The Aspen Times
Aspen, CO, Colorado

Do you understand federal election finance law? If so, you are ahead of most Americans. You are ahead of most news readers and commentators, and you are way ahead of President Obama. (See his distortion of the Citizens United decision in his January 2010 State of the Union address.)

Why is this relevant almost 30 months later? Because this year’s important elections will be enlivened by outraged and mostly misinformed criticisms of big-money spending on political speech. However one feels about it, one ought to be informed about what the rules really are and why before deciding what should or shouldn’t – or indeed can and cannot – be done about such spending.

The U.S. Supreme Court has decided cases dealing with campaign finance for more than 45 years, since Congress started passing restrictions on contributions and spending in the 1970s. The problem with the restrictions was that spreading a political message requires money, so limits on contributions and spending are limits on political speech. Courts analogize the level of political spending to the size of a person’s megaphone (or loudspeaker). The First Amendment proclaims that “Congress shall make no law … abridging the freedom of speech.” This prohibits limits on the size of the megaphone. A law that limits contributions or spending does limit the size of the megaphone, abridging the freedom of speech.



Given the fundamental importance of free political speech, the Supreme Court has struck down many campaign finance and spending-law restrictions that it found abridged the freedom of political speech.

Years before Citizens United, the court had decided that corporations (being associations of individuals) enjoy First Amendment free-speech rights (an example of the bedrock importance of free speech). The court also had allowed some laws to stand that could inhibit speech where other public policies were important enough.



For example: 1) Reasonable restrictions were allowed on the amounts of contributions to candidates (to limit corruption), 2) some disclosure requirements were approved (again, to fight corruption), and, in an aberration, 3) a state law banning certain corporate political speech was approved (Austin v. Michigan Chamber of Commerce, 1990). Thus, the Supreme Court’s decisions have jealously protected freedom of political speech while allowing limitations that it was persuaded were necessary to limit corruption of candidates.

Along came Citizens United, involving a federal ban on certain political spending. The ban’s supporters said the Austin decision (3, above) required the ban to be upheld. This demonstrated to the court the threat to freedom of political speech that had been loosed by its indulgence of a state speech ban in Austin.

The Supreme Court decided in Citizens United that its Austin decision was a mistake; it overturned its own precedent. The Austin decision reasoned that large expenditures on political speech can have a large political impact and that there is a legitimate public interest in preventing such an impact. But that reasoning could not withstand scrutiny under the First Amendment.

The whole point of First Amendment free speech is to permit anyone and everyone to speak as loudly and frequently as possible and to have as big an impact as possible on political discourse. While large corporations and unions might be able to spend a lot on political speech (use a large megaphone), so could a partnership of individuals, a wealthy individual alone or a person of limited means who happened to be a favorite guest on “The View.” Individuals’ political speech is protected, and there is no reasoned basis for distinguishing individuals’ political speech from that of associations of individuals (corporations and unions); a restriction on the speech of the latter would be a restriction on the speech of the former.

So the Supreme Court overturned Austin and held in Citizens United that prohibitions on political speech of associations, including corporations and unions, violate the First Amendment protection of political speech.

Some have called for overturning Citizens United. That would be dangerous. Citizens United is only one in a progression of cases protecting various aspects of free speech. The freedom protected by those decisions is the individual’s freedom of speech, simply recognized for individuals who have formed various types of associations with others. Attempts to restrict the speech of associations easily can cause restrictions on the speech of individuals. Those who attack Citizens United are attacking the right of Americans to engage in free political speech. Fortunately, the Supreme Court still protects that right even if there are Americans who would sacrifice it.


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